A distillation of US civil rights issues past & present

Category Archives: Due Process

President Obama gave a speech last Thursday, May 23, 2013 regarding his use of drones to kill anyone he deems killable, anywhere in the world, for as long as he determines is necessary. (Full text and audio of the speech here.)

This speech follows, by one day, the letter from Obama’s Department of Justice confessing to and rationalizing the due-process free murders of four Americans.

First of all, let’s review the propaganda run-up to the President’s big drone speech.

As is typical of image-building exercises, the President’s message was first leaked to the New York Times.

Specific details of a “classified policy guidance” regarding drone assassinations appear in the leak here(4th paragraph from the top):

A new classified policy guidance signed by Mr. Obama will sharply curtail the instances when unmanned aircraft can be used to attack in places that are not overt war zones, countries like Pakistan, Yemen and Somalia. The rules will impose the same standard for strikes on foreign enemies now used only for American citizens deemed to be terrorists.

This leak was in an edition of NYT put out May 22, 2013, the day before the President’s speech.

The NYT article doesn’t mention that the details were an “anonymous” leak, of course, but given the nature of the details, you would assume the information had to come from the President’s administration.

The article does point out, however, that the new policy guidance from Obama is “classified”.

I wonder if there will be any witch hunt prosecutions for this self-serving administration leak?

This NYT leak can’t be found anywhere else prior to its release.

PBS refers to the NYT leak as a “… preview [of] the president’s remarks.”

Sometimes, “previews” of classified information land a normal citizen in jail for decades, but leaks/previews are just fine when they cast our leaders in the desired light. The Obama administration, while being as tough as any administration on whistleblowers, is fond of using self-serving leaks when they are helpful.

So, why the NYT? Why leak there before the speech?

In my opinion, the President is using this paper because the NYT will print any anonymous bit of tripe the government wants, without factual vetting, as we saw beautifully illustrated in the Iraq War. (see their more kindly worded apology for doing so)

In addition, the NYT is still the respected paper of what Chomsky calls “the Establishment Left”…left beyond which no major media discussion can occur…and, importantly, the most credible way to reach President Obama’s civil rights critics on the left.

The purpose of the President’s speech was to pacify critics of his drone use.

Incidentally, the critics have a point.

The Washington Post recently reported “…the CIA and the military have carried out an estimated 416 drone strikes in Pakistan and Yemen [since 2002], resulting in 3,364 estimated deaths, including militants and civilians.”

416 separate military attacks with no specific congressional approval.

The fun with propaganda continues. Let’s see the post-speech reviews.

The day after the speech, the NYT editorial page ran an op-ed article entitled “The End of the Perpetual War“, purporting to review the speech.

The article is an amazing piece of propaganda.

It makes you wonder if this is the “quo” part of some implicit quid-pro-quo arrangement where the NYT gets the leaked details before anyone else and then trumpets the President’s speech as amazing and successful in return.

The post-speech article “gushingly” calls the speech the “…most important statement…” on the war on terror and states the speech was “…a momentous turning point in post-9/11 America.”

What rubbish.

The post-speech op-ed goes on to state:

For the first time, a president stated clearly and unequivocally that the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.

The actual text of the President’s speech contains absolutely nothing clear, unequivocal, or otherwise about the war on terror’s ending “…in the not-too-distant-future”.

The speech actually says, in its only reference to an end to the AUMF (war powers given post 9/11) :

And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.

The AUMF is now nearly 12 years old. The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states.

So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end.

Where did the NYT op-ed writer get that “in the not too distant future” part?

It is absolutely not in the President’s speech.

It is, however, exactly the impression that Obama wants to convey, and so, the NYT was happy to say it for him.

So…when will the war end?

Obama’s military officers have been much more specific than the President’s saying simply that the war “…must end.”

The military has been even more specific than the NYT op-ed’s fabrication that the President said the war would end “in the not-too-distant-future”.

Senior defense official Michael Sheehan, in a congressional hearing held May 16th, 2013, only one week before the speech and only eight days before the post-speech NYT op-ed, under oath and testifying before Senators, stated specifically…

without subsequent correction or “clarification” by Obama…

that the “War on Terror” would last at least another 10 to 20 years!

Funny the NYT op-ed did not mention this in their cheerleading post-speech piece.

How do you leave that out of a story about the “end of the perpetual war”?

Propaganda.

President Obama did, however, say something that was special in his speech…

You didn’t see it mentioned in the pre-speech NYT article.

You didn’t see it on the post-speech cheerleading NYT op-ed.

In the speech, the President gave us his view on the breadth of his powers to use military force, globally, under the AUMF. This is the real story.

The President said

Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states [my emphasis]

President Obama views the AUMF powers he has been granted to be “…unbound powers…”.

The words in his speech were, of course, chosen carefully. This was a much-anticipated speech he made, watched around the world. These were not off-the-cuff remarks.

He meant what he said.

“…unbound powers…”

Isn’t this the real news story?

Why was this not reported in the lengthy, post-speech cheerleading NYT op-ed ?

President Obama then goes on to say, regarding the “unbound powers” of the AUMF:

“And I will not sign laws designed to expand this mandate further.

How would he expand something he believes and has told us is “unbound”?

Bit hollow, that reassurance…

In his speech, President Obama continued:

And that’s why, over the last four years, my administration has worked vigorously to establish a framework that governs our use of force against terrorists –- insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday.

In the absence of any perceived limits on his powers under the AUMF, Obama and his employees tried to build their own cages, we are told.

He tells us they have even worked “vigorously” insisting on oversight and accountability.

Funny how the due process-free killing of four Americans was just admitted this month, despite having happened years ago.

We have bombed foreign countries over 400 times, and he is just getting around to telling us all about it.

This does not sound too much like vigorous accountability.

Obama is finally getting criticism for his nasty habit of bombing whomever, whenever and wherever he personally chooses.

The AP scandal seemed to wake people up. He deserves much more rigorous and sustained criticism.

One Senator, Senator Angus King, from Maine gets it. In the hearing with senior defense official Michael Sheehan, mentioned above, held May 16th, 2013, Senator King states:

SEN. ANGUS KING: Gentlemen, I’ve only been here five months, but this is the most astounding and most astoundingly disturbing hearing that I’ve been to since I’ve been here. You guys have essentially rewritten the Constitution here today. The Constitution, Article I, Section 8, Clause 11, clearly says that the Congress has the power to declare war. This—this authorization, the AUMF, is very limited. And you keep using the term “associated forces.” You use it 13 times in your statement. That is not in the AUMF. And you said at one point, “It suits us very well.” I assume it does suit you very well, because you’re reading it to cover everything and anything. And then you said, at another point, “So, even if the AUMF doesn’t apply, the general law of war applies, and we can take these actions.” So, my question is: How do you possibly square this with the requirement of the Constitution that the Congress has the power to declare war?

This is one of the most fundamental divisions in our constitutional scheme, that the Congress has the power to declare war; the president is the commander-in-chief and prosecutes the war. But you’re reading this AUMF in such a way as to apply clearly outside of what it says

Our President needs a real, active, critical press to call him out on his “unbound” warmongering. Maybe the AP scandal waked them.

Our congress needs to stand up and insist on being counted. They should assert their power as the executive branch can’t be counted on to share it, and our checks & balances naturally demand their involvement.

Executive power has concentrated to dangerous levels as a result of the “war on terror”.

Speak out against this perpetual warmongering and totalitarian concentration of power.

President Obama today has called again for the closing of Guantanamo Bay.

Obama the Merciful.

Could his empathy perhaps be due to the world-wide attention now focused on the fact that 100 out of 166 inmates there are on hunger strike and may start dying in droves?

The inmates seem to protest the fact that they have been held indefinitely ( a mere 11+ years and counting) with no presented evidence or even charges. Over two dozen have decided they want to die of hunger rather than stay there like animals.

Media attention has been drawn to the hunger strike, and it seems to have provoked a verbal response from the President, who will go down in history as being as destructive to our civil rights as Woodrow Wilson or the big, bad “W”.

For a slice of life for the protestors inside of Gitmo, please read this short Op-Ed from the New York Times. The writer gives us, in plain prose, what happens at Gitmo when they ring that dinner bell.

I am pleased that our President has spoken out against this ridiculous black hole in Cuba; he can sound so sincere. Like a kid with an abusive Dad, I believe him this time…he doesn’t really want to do these things, but you know, the bad guys just make him sometimes, and anyways, as long as he can kill with robots in any country he choses while caging whistleblowers like he was paid on commission, he promises not to open yet another black prison site, where due process is abandoned and humans are tortured…sorry…”subject to enhanced interrogation” again.

At the Nuremberg trials, at the end of World War II, Prosecutor Robert Jackson stated of the nazi defendants on trial:

“Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission”.

Jackson was trying genocidal, nazi monsters..real-deal bad guys, like Goering, Hess, Fritz Sauckel (Chief of Slave Labor Recruitment), Hans Frank (Governor-general of Nazi-occupied Poland, called the “Jew butcher of Krakow.”) Somehow, despite the public pressure of even our allies, America showed the world we were a nation of laws. We did not just kill the nazi defendants, although we were at war with them. We observed due process even for the worst we had encountered.

Now, compare the Nuremberg trials with the capture of Bin Laden.

The Nazis were tried, in public, with due process rights, right to counsel, and with a presumption of innocence.

Bin Laden was shot in the night, and his un-autopsied body was dumped into the sea. People in his compound, who’d been charged with no crimes, were butchered, but it seems almost impolite and unpatriotic to mention this in our corporate-owned, highly concentrated, “free press”.

Is there any reason that could explain the difference in our treatment of Nazis at Nuremberg and the assassination of Bin Laden other than the fact our government has suffered a total moral collapse?

Do we now just operate nakedly and openly as Empire, red-in-tooth-and-claw, and without pretense?

We had full control over Bin Laden, who was reportedly unarmed. We could’ve shackled him and brought him to justice, in a court, in full public view. We could’ve shown the evidence we had against him. We could’ve honored our foundational traditions and honored our system of laws by observing due process, including, as radical as it seems these days, a presumption of innocence.

Bin Laden was essentially lynched. This was not justice, whatever you think of Bin Laden. This was a lynching.

How about the Obama Justice Department’s memo on the power of the government to kill U.S. citizens? A great discussion of the DOJ’s white paper can be found in one of Glenn Greenwald’s columns. In the memo, if the President, or his underlings, determine that an American fits within certain criteria, the President can just order the U.S. citizen to be killed.

The Department of Justice, which may need to be renamed to something more relevant after Bush and Obama’s Presidencies, did allow that “due process” attached to such American citizens meeting the President’s criteria for assassination, but that due process could be satisfied by internal deliberations in the executive branch.

One more time, the due process required to kill an American citizen who has not been charged formally with any crime is satisfied per our current Justice Department if some folks in the executive branch talk about it, in complete secrecy, and agree that the American fits 3 criteria.

Accusations, then, are the same as proof.

Accusations from the same people who brought us Tuskegee and the imminent-use nuclear weapons of Saddam and Iran Contra and Cambodia/Laos and 1000 other untruths.

The point is not that our government is evil. The point is that transparency and checks & balances are critical to our Democracy.

Our congress, mostly protectors of the profitable, passed the National Defense Authorization Act (NDAA) of 2012. It allowed for the lifetime detention of American citizens, without trial of any kind, if the executive branch decided you were a member of this or that terrorist group. No proof ever needed to be shown, and the government needed not tell anyone they had taken you. They could just hold you forever.

President Obama, in a fit of civility, said that his administration would never interpret the NDAA so as to lock up an American citizen for life, without trial or formal, public charges.

But he signed the law.

Administrations change, making his assurances relevant only to the extent you believed him and he didn’t change his mind or, in any event, until the end of his term.

For some reason, most folks I spoke with didn’t really know about the NDAA. It was an odious piece of legislation that will be studied in future history classes as a classic example of imbalance between security and liberty.

In 2013, Congress added section 1029 which says the government will follow the Constitution and extend due process to citizens.

How nice of them.

Maybe next time, they will consider not authoring, voting on, and passing, in both houses, laws that are facially unconstitutional?

Chris Hedges, is a heavy-duty, award-snatchin’ journalist who worked, among other places, as the New York Times’ foreign correspondent for 15 years. He received, along with some other reporters in the group, the Pulitzer Prize for coverage on terrorism. He received the 2002 Amnesty International Global Award for Human Rights Journalism, taught at Columbia, you know…heavy hitter. He fought against the NDAA and filed suit against it. See his latest column on the suit. He’s an ardent defender of human rights and is well worth reading.

Now, in our headlines, we hear about the capture of the alleged Boston marathon bomber and naturalized citizen Dzhokhar Tsarnaev. The Justice Department decided to have a criminal trial instead of just killing him. I was almost surprised he wasn’t just shot on capture and dumped in the harbor.

How is the alleged marathon bomber so different from Awlaki/Aulaqi in Yemen? If you believe the marathon bomber is guilty, surely he is guilty of a much more heinous crime than Awlaki? They were both citizens. We killed Awlaki with a fancy robot, without charging him with anything formally…just incinerated him on the road. There has still been no real presentation of the evidence against him. Being a firebrand Islamic cleric calling for the destruction of America is protected by our Constitution and the First Amendment. Accusations of his operational involvement in crimes have been alluded to quasi-anonymously, but not presented in detail.

We left Awlaki’s corpse to be cleaned up by the locals or whomever. We even blew up some folks near him, and his 16-year-old cousin, but, again, it is impolite and unpatriotic to talk about that. We left those bodies on the road too. At least we cleaned up a little at Bin Laden’s.

Awlaki’s dad and the ACLU even tried to get the government to prosecute Awlaki vs just killing him. I am used to the fact that our government doesn’t seem to care much for the deaths of muslims, but I was surprised at the general embrace the assassination of Awlaki received by “We-the-People”, as he was at least an American muslim.

Currently, we all read about hunger strikes at Guantanamo Bay. This is the face of American justice being shown to the world…force feedings, black hoods, and a complete lack of due process. We have held those folks there, with no trials or presentations of any evidence, for 11+ years. Now they all want to die.

How can a government release prisoners they have held, without credible evidence’s being presented, for so long and so cruelly? The emperor would be completely naked.

Those prisoners would get to journalists. Questions would be asked. Light would shine in black sites. Just read the story of Canadian Engineer, Maher Arar. He was taken from Kennedy Airport, in NYC, and flown to Syria where he was tortured for 10+ months He was, of course, completely innocent. You can google him, read of his release, without apology, by the US. The Cato project has a good 9+minute video of released and tortured Guantanamo inmates.

If the US had stone-cold proof that our prisoners at Gitmo were monsters, we would’ve seen it by now.

In the run up to Iraq, when we were desperate to assemble a coalition and garner world-wide support, you still saw no real evidence or proof of weapons of mass destruction much less, their imminent use. If the government had held such evidence, they would’ve shown it. They didn’t.

Same mechanics here. If there were reams of credible evidence that the bulk of people at Gitmo were monsters that had harmed the US, we would’ve heard it. We haven’t. The cases the government cherry-picked for review have been generally slapped down.

These guys are never getting out of Gitmo. They will just sit there and die eventually unless the world says “show what evidence you have or release them.”

Process matters. The world’s largest military power needs to be a nation of laws just as the world’s most vulnerable country. Our history demands that we honor our principles of due process.

Think of how far we have fallen since Nuremberg.

The Statue of Liberty is beautiful, strong, compassionate, and welcoming to immigrants and the most humble, on the outside. On the inside, she’s completely hollow and dark.

Administrator and writer

My name is Glenn Dukes. I'm an attorney (since 1993), with a background focused on indigent criminal defense and constitutional law. I was a Public Defender for 8 years and also represented, at state level, the department of corrections in administrative actions against correctional officers. I am now practicing as a criminal defense lawyer in Nashville, Tennessee and writing on civil rights issues here, at civilrightskiosk.com. (Also on tumblr and facebook)
Email: civilrightskiosk@Gmail.com